How clout keeps court cases secret

Sealed files

Chris Walker, Chicago Tribune

Pat Kelly, file storage manager in the clerk’s office of the Cook County Circuit Court, looks through a file in a room known as the vault, an area on the eighth floor of the Daley Center where sealed court documents are stored.

Pat Kelly, file storage manager in the clerk’s office of the Cook County Circuit Court, looks through a file in a room known as the vault, an area on the eighth floor of the Daley Center where sealed court documents are stored. (Chris Walker, Chicago Tribune)

By Cynthia Dizikes and Todd Lighty, Chicago Tribune reporters

On the eighth floor of the Daley Center, behind a locked metal door, is a narrow room known as the vault.

Within its walls reside files that Cook County Circuit Court judges have ordered hidden from the public,something they have done hundreds of times since 2000.

Although state law requires that certain types of lawsuits must be sealed, a Tribune investigation has found that judges improperly removed others from public view, including cases involving a famous chef, millionaire businessmen and even other judges.

The Tribune's review of cases found that judges regularly fail to give a reason in their written orders for sealing files; hide entire case files when they needed only to remove sensitive information such as Social Security numbers or home addresses; and that the sealing orders often remain secret despite state case law finding orders are public documents and "should not be kept under seal."

Courts in the United Stateshave a long tradition of openness, and experts say court secrecy fosters mistrust and can put public safety at risk.

"These cases go to the integrity of the courts system," said Arthur Bryant, executive director of Public Justice, a Washington, D.C.-based group that has fought for openness in the courts. "It is hard to have a democratic system, or one that works to make sure the law is just and the courts are fair, if what happens in the courts is secret."

In Illinois, bills aimed at curtailing secrecy in the courts have failed multiple times in the Legislature since 1999, opposed by the health care, insurance and manufacturing industries.

There is no way to know what is contained in Cook County's sealed files since they remain in locked rooms. But a review of dozens of previously sealed court files in the Law Division offers a glimpse, with instances of the well-connected and the well-known having their cases hidden from the public.

Gras, an avid cyclist, was riding his $11,000 S-Works bike on the city's North Side in September 2008 when he and a car collided in an intersection, according to court records. He suffered seven broken ribs, a collapsed lung, two pelvic fractures and cuts and bruises.

In December 2008, he sued the 22-year-old driver in the Law Division, where complex legal battles play out and where large amounts of money are at stake.

Gras filed his complaint under a pseudonym, "John Doe," and asked Judge William Maddux to seal the entire file. Maddux, who presides over the court's Law Division, granted Gras' request.

Maddux gave no reason in his written order for sealing the file.

Instead, his order contained vague language similar to what is found in other judges' orders for sealing files: "Plaintiff's motion is granted and this cause of action shall be filed under a fictitious name and the court file shall be sealed and not unsealed until further order of the court."

In February 2009, Judge Kathy Flanagan unsealed the case, finding there was "no lawful basis to suppress the entire court file." She, however, allowed it to proceed as John Doe versus Paige Jessee, then a graduate student and Caribou Coffee barista. Flanagan declined to comment.

The Tribune confirmed Gras was John Doe through a public records request for the accident report from Chicago police.

Jessee told police that Gras entered the intersection against the red light, according to the police report. Gras was taken to a hospital in an ambulance.

Gras reached an out-of-court settlement with Jessee's insurance company, according to Jessee's lawyer, Harold Himelman, who said the terms were confidential. Gras, who has since left Chicago and L20, did not respond to requests for comment. His lawyer declined to comment.

Maddux said last week that he did not recall why he sealed the Gras case and added that he has sealed cases to prevent "somebody who wants to peruse through files to find something scandalous."

"I don't seal just anything," he said. "My own perspective, attitude is, it's a public document, a public record, and there has to be a really good reason to seal the file."

Jessee said she had no idea the case had been sealed. "It's interesting," she said, "that his name is not listed, but mine is."

Jessee said she never met Gras. "I know from Googling him what his profession was," she said. "I do know he was definitely well-known. I don't know if that's why the case was sealed. It was just an auto accident."

Even mundane squabbles such as landlord-tenant disputes over money owed have been given the highest level of secrecy.

Elliott Muse Jr., then a Cook County judge, sued lawyer Adam Bourgeois Jr. in 1998for allegedly failing to pay more than $15,000 in office rent.

Then, in April 2000 — just months after Bourgeois became a Cook County judge — the case was sealed in the First Municipal District. The judge presiding over the Muse-Bourgeois dispute provided no reason in his order.

Muse, who has since retired from the bench, said he did not have the case sealed. He declined to discuss the matter further.

Nor, Bourgeois said, did he request that his file be sealed. "Maybe (they) were trying to save someone from embarrassment," he said. "It's just bewildering to me."

The court ordered Bourgeois to pay the rent money owed to Muse.

According to court records, Bourgeois' lawyer, Christopher Millet, drafted the order that was signed by then-Judge Wayne Rhine. Millet, who is Bourgeois' cousin, was convicted in 2005 of drug-related charges and disbarred. He is serving a federal prison sentence.

Rhine said he did not recall who requested that the case be hidden, but he had no problem sealing it.

"I didn't want two sitting judges hanging out their dirty laundry," he said. "If they run for retention or for another office, this could come back to haunt them. I did it as an accommodation for fellow judges."

Sealing orders tend not to display such candor.

The Tribune found judges regularly fail to give any reason in their written orders for sealing a case, even though state case law says a judge should explain why a file was hidden.

Maddux, for instance, gave no reason in his order when he sealed an April 2010 lawsuit that a businessman filed against a woman, alleging she had an inappropriate and harmful relationship with his son. Maddux said he did not recall the case. The complaint was filed under seal, and even the parties' identities were hidden as "Suppressed Plaintiff v. Suppressed Defendant."

The case, which Judge Flanagan unsealed earlier this year, involves an ongoing dispute between entrepreneur and marketing veteran John Malec and Lynn Trotter, ex-wife of chef Charlie Trotter.

Lynn Trotter could not be reached for comment. Her lawyer, David Pogrund, denied Malec's allegations and said the judge sealed the case before Trotter retained him. He said it was sealed at Malec's request. Malec's son said in an affidavit there was nothing harmful or inappropriate about their relationship, according to court records.

Malec is the chief executive officer and founder of Visible Spectrum Inc., a digital video company.Malec's company biography says he is a member of the Chicago-area Entrepreneurial Hall of Fame and was the founder of Information Resources Inc., which achieved about $600 million in annual revenues during his tenure.

Court records filed during Malec's divorce from his second wife in the late 1980s had estimated his wealth from $50 million to $100 million.

Neither Malec nor his lawyer returned messages seeking comment. Suzy Suker, director of administration for Malec's company, said Malec did not want to answer questions about his lawsuit. "It's a family matter," she said.

Case law presumes documents lose their private nature once filed in public courts, and there must be compelling reasons for sealing a file.

But a judge sealed the divorce file of securities trader Blair Hull and his ex-wife "in order to protect their privacy." Under pressure during his failed 2004 bid for the U.S. Senate, Hull released the previously sealed files.

Lori Reilly,a lawyer who wanted to run for judge, filed a medical malpractice suit in 2004 against Loyola University Medical Center and its staff, alleging that they failed to diagnose her breast cancer.

Brian Reilly recalled that his wife wanted the case sealed because it was a "very private" matter and she was a lawyer with hopes of becoming a judge. He said his wife's breast cancer "accelerated her desire to move forward with that goal."

She formed a political campaign committee but died in June 2006. Her family settled the case for $100,000, according to court records.

Brian Reilly said he and his wife discussed sealing the case. "It wasn't like we were trying to hide anything; it was just a matter of not wanting to have something that was personal in the open record," he said.

Maddux said he may have sealed the Reilly file because of "breast cancer sensitivity" and Reilly's concern that voters would find out she had cancer.

Loyola and its lawyers argued for the case to be open, saying that they never were given an opportunity to object to it being sealed, and that there was no "compelling interest" to hide court documents from the public.

Madeleine Weldon-Linne, Loyola's lawyer, recalled that no reason was stated in the record for why Maddux sealed the file. "I don't know why the court allowed that."

Under state law, certain cases must be sealed — such as those involving children, the mentally ill and whistle-blowers.

Judges, however, are largely left on their own in determining whether to take the extraordinary step of hiding cases in a court system paid for with tax dollars.

The Cook County Circuit Court clerk provided numbers of cases sealed since 2000 for the Law, Civil, Domestic Relations, Probate and Chancery divisions. At least 436 cases were sealed in the Law Division and hundreds more in the others.

The Tribune focused on the Law Division, where lawyers file more than 15,000 lawsuits every year. The cases involve large legal disputes over matters such as product liability, medical malpractice and wrongful death.

Many of the Law Division cases sealed involve whistle-blower lawsuits. But many others still remain hidden from the public, including personal injury complaints and disputes between companies.

A Tribune analysis found that 166 of the 436 cases remained sealed as of July 1. In nearly 100 cases, both the plaintiffs' and defendants' identities also remained secret.

The cases where the files are sealed but the names are public include powerful institutions, corporations, government agencies and influential individuals — the Archdiocese of Chicago; the Mormon church; Sears, Roebuck & Co.; Illinois Department of Children and Family Services; the Chicago Park District; Cook County Hospital; and TV news anchorman Walter Jacobson. Jacobson, who at the time worked for Fox News, said Friday he did not recall the 2001 libel/slander case.

Tribune Co. and the Chicago Tribune also were defendants in a court matter sealed in August 2008. Other defendants included the Chicago Cubs, which Tribune Co. owned at the time, and the Chicago White Sox. The plaintiff used a pseudonym, "Jane Doe."

Scott Reifert, a White Sox spokesman, said the plaintiff asked that the case be sealed. He declined to describe the nature of the legal dispute but said "we engaged in discussions on settlement and during that time, the plaintiff withdrew the case. We eventually settled." He said the settlement was confidential.

Chief Judge Timothy Evans, the boss of Cook County's more than 400 judges, said in written correspondence with the Tribune that the court favors openness. "Judges know what the rules are and presumably do their best to follow them," Evans said.

Evans said that individual judges should know when it is appropriate to seal a case, and that the topic is part of their continuing training. "Such decisions are ... to be based on consideration of all the facts and circumstances of each request in accordance with the controlling legal authority," he said.

Evans had approved the Tribune's request for court data, and in granting it, he wrote, "The public must be allowed to inspect and copy judicial records, whenever it is reasonably possible, in furtherance of the public's right to monitor the functioning of our courts."

John Elson, a Northwestern University law professor, said a judge sealing a file should publicly state the reasons because it "is an important safeguard against the overuse, as well as the unfair and erroneous use, of sealing orders.

"In addition, zealous concern for the public's right to know what is going on in the courts should entail regular, expeditious rules and procedures for challenging sealing orders," he said.

Across the country, the potential dangers buried in sealed records have taken many forms: bad doctors, unsafe medical devices, dangerous workplaces, and defective and potentially deadly products — such as toxic painkillers and puncture-prone automobile gas tanks.

Beyond issues of public hazard, sealed files also have cloaked the misdeeds of government officials and the legal battles of the wealthy, preventing the public from knowing whetherthe law is being applied equally, legal experts said.

"Just because you are wealthy and prominent," Elson said, "doesn't mean you get a pass."